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Riddick v. Harris

Court of Appeals of Arkansas, Division III

September 21, 2016



          Martin E. Lilly, for appellant/cross-appellee.

          Law Office of Wendell L. Hoskins II, by: Wendell L. Hoskins II, for appellee/cross-appellant.


         Michael Riddick appeals the final order entered by the Circuit Court of Mississippi County denying his motion to modify custody and granting Emily Harris's motion to modify child support. On cross-appeal, Harris argues that the trial court erred in calculating Riddick's income for child-support purposes; finding her in contempt of the summer visitation schedule; modifying Riddick's visitation; denying her request to make Riddick's increased child-support obligation retroactive; and denying her request for attorney's fees. We affirm on direct appeal and reverse in part and affirm in part on cross-appeal.

         The parties' divorce decree, entered on February 20, 2009, awarded Harris custody of the parties' son K.R., born May 27, 2007, subject to Riddick's visitation rights. On April 18, 2014, Riddick filed a petition for emergency order of custody, petition to modify the divorce decree, and petition for order to show cause and contempt. Riddick alleged that a material and substantial change in circumstances had occurred that justified the modification of custody, visitation, and child support. In response, Harris filed a petition for modification of child support.

         A final hearing was held on January 21-22, 2015. On June 26, 2015, the trial court issued its final order. Among other things, the trial court denied Riddick's petition to modify custody; granted his petition to modify visitation; granted Harris's petition to modify Riddick's child-support obligation; granted Riddick's petition for contempt and ordered Harris to pay Riddick $500 in attorney's fees; and found that the parties should bear their own attorney's fees. This appeal and cross-appeal followed.

         I. Direct Appeal

         For his first point on appeal, Riddick argues that the trial court clearly erred in denying his petition to modify custody. The facts were undisputed that since the parties' divorce, Harris had moved twice, had enrolled K.R. in two different school districts, had four boyfriends, had been engaged to two men, had a child (B.G.) out of wedlock with Clayton Gentry, was served a paternity action by Gentry and hired attorney Jim Harris to represent her in that action, began dating Jim Harris (who is twenty-three years older than she) the following month, married him a few months after that, and was expecting his child.

         Gentry testified about an incident in the summer of 2013. Around 11:00 p.m., Harris showed up at his apartment unannounced and became upset when she saw another woman there. Gentry said that Harris cursed, called the other woman "bad names, " left the apartment, and got into her vehicle, where she had left B.G. alone. Harris then pulled her vehicle up to Gentry's front door, honked, and continued to yell. Gentry came out to the car, and when he leaned his arm on the car door, which was open, Harris "hammered down on the gas and drove [him] through [his] ditch, " until he could stop the vehicle.

         Finally, there was evidence that after Riddick had filed the petition to modify custody in April 2014, Harris engaged in a pattern of behavior calculated to limit and diminish K.R.'s relationship with Riddick by unilaterally changing the parties' visitation schedule.

         In its letter opinion, the trial court found that a material change in circumstances had occurred. However, the trial court disagreed that a change of custody was in K.R.'s best interest. The court found that both Riddick and Harris were loving, involved parents, who had strong bonds with K.R. The court found that K.R. was happy at the homes of both of his parents. Both stepparents[1] testified that they loved K.R. and welcomed his presence in their homes. The court also found that the parties agreed that K.R. was a happy, well-adjusted child. K.R.'s teacher testified that he was an excellent student, who was motivated and worked hard. The trial court also found that Harris's behavior had stabilized upon her marriage to Jim Harris and that they seemingly had a loving relationship. Further, the court found that there was no evidence that Harris's prior unstable behavior had negatively impacted K.R. Finally, the trial court noted that K.R. had lived the past three years with his younger brother B.G. and that it was in K.R.'s best interest to remain with his sibling.

         Arkansas law is well settled that the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. Evans v. McKinney, 2014 Ark.App. 440, at 4, 440 S.W.3d 357, 359. Generally, courts impose more stringent standards for modifications in custody than they do for initial determinations of custody. Id., 440 S.W.3d at 359. The reason for requiring more stringent standards for modifications than for initial custody determinations is to promote stability and continuity in the life of the child and to discourage repeated litigation of the same issues. Id., 440 S.W.3d at 359.

         The party seeking modification of the custody order has the burden of showing a material change in circumstances. Id., 440 S.W.3d at 359. In order to change custody, the trial court must first determine that a material change in circumstances has occurred since the last order of custody; if that threshold requirement is met, it must then determine who should have custody with the sole consideration being the best interest of the children. Id., 440 S.W.3d at 359. In reviewing child-custody cases, we consider the evidence de novo, but will not reverse a trial court's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Id., 440 S.W.3d at 359.

         Riddick argues that the trial court clearly erred in determining that it was in the best interest of K.R. to remain in his mother's custody. In support of his argument, Riddick restates all of the evidence of Harris's unstable behavior, argues that she has intentionally alienated him from his child, and points out that he and his wife can provide a stable life for K.R.

         Based on a de novo review, we hold that the trial court did not clearly err in finding that it was not in K.R.'s best interest to change custody to Riddick. In an extremely detailed letter opinion, the trial court noted that both parents love K.R. and were capable of caring for him. However, the court found there was no reason to alter the current custodial arrangement to which K.R. was accustomed because he is a happy, well-adjusted child, who was performing very well in school. The court also properly considered that K.R. had formed a bond with his younger brother and that it was important that they continue to live together. See Sykes v. Warren, 99 Ark.App. 210, 217, 258 S.W.3d 788, 793 (2007) (recognizing that unless exceptional circumstances are involved, young children should not be separated from each other by dividing their custody). Finally, the court found that the questionable behavior of Harris had not negatively impacted K.R. and that since she had remarried, her behavior had stabilized. We will not substitute our judgment for that of the trial court, which observed the witnesses first hand. Evans, 2014 Ark.App. 440, at 6, 440 S.W.3d at 360. There are no cases in which the superior position, ability, and opportunity of the trial judge to observe the parties carry a greater weight than those involving the custody of minor children, and our deference to the trial judge in matters of credibility is correspondingly greater in such cases. Id., 440 S.W.3d at 360. Therefore, we affirm on this point.

         Riddick's second point on direct appeal is that the trial court abused its discretion in modifying his child-support obligation. As a rule, when the amount of child support is at issue, we will not reverse the trial court absent an abuse of discretion. Browning v. Browning, 2015 Ark.App. 104, at 6, 455 S.W.3d 863, 867.

         Pursuant to the divorce decree, Riddick was ordered to pay $501 per month in child support. Riddick's support payments were later abated to $472.09 per month to account for his six-week summer visitation. At the January 2015 hearing, the evidence established that Riddick had experienced a material increase in income, which was derived from three sources: wages from his employer Syngenta; rental income; and farm income. In its letter opinions, the trial court found that Riddick's net monthly income was $8, 735.36.[2] ...

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